Decision No. 9 of 10 May 2018 on Constitutional Case No. 5/2017
Referring Authority and Subject Matter of the Case
The case was initiated upon a request submitted by 71 Members of Parliament from the Forty-Fourth National Assembly. The subject matter of the case concerns the constitutionality of provisions of the Pre-school and School Education Act (PSEA) relating to: state educational standards; references to acts of executive authorities and municipal councils; the autonomy of kindergartens, schools and centres for personal development support; maintenance fees in pre-school and school education; the requirements governing the development of state educational standards and the National Qualifications Framework; state subsidies for private kindergartens and private schools; as well as the compatibility of provisions regulating state subsidies with international treaties to which Bulgaria is a party.
Summary of the Court’s Reasoning
Within the competence of the National Assembly lies the establishment of a statutory framework regulating the field of education, designed to ensure the effective exercise of the citizens’ social right under Article 53, paragraph 1 of the Constitution (the right to education). The legislator determines, as a matter of expediency, what system of education to adopt and on what principles it is to be implemented, in accordance with the constitutional requirements.
In the field of education, the legislative authority enjoys a significant degree of discretion, provided that it does not encroach upon the competence of other state bodies in accordance with the principle of separation of powers.
The principle of the rule of law requires not only that matters which, by their nature, necessitate regulation by statute be governed exclusively by the legislature, but also that matters which do not require statutory regulation be regulated by subordinate legislation.
The subject matter of statutory regulation should consist of “fundamental social relations amenable to durable regulation”, whereas for other relations within the same field, the law may provide for regulation by subordinate legislative acts.
Constituted under the rules of the Fundamental Law as a body of the executive power with specialised competence, the Minister of Education and Science directs and coordinates the implementation of state policy in the field of pre-school and school education. It is a constitutional power of every minister, where expressly authorised by law, to issue regulations, ordinances and instructions, thereby exercising normative competence in matters of state administration falling within their ministerial portfolio. Subordinate normative regulation allows for the creation of detailed rules, as well as greater flexibility in adopting subsequent amendments.
The Fundamental Law contains no express prohibition on granting autonomy to institutions within the system of pre-school and school education, nor can such a prohibition be derived through interpretative means from Article 53 of the Constitution. Such autonomy consists in the ability of these institutions in the field of education, through their pedagogical councils, to decide matters concerning their internal organisation and activities. This provision enables these institutions to govern themselves in compliance with the applicable regulatory requirements, which constitutes a legislative solution based on expediency and is consistent with the constitutional provisions.
Article 53, paragraph 3 of the Constitution provides that only primary and secondary education in state and municipal schools is free of charge, i.e. school education. Even when provided in a state or municipal school, pre-school education does not become part of primary and secondary (school) education, and the constitutional provision stipulates free access only for primary and secondary (school) education. According to Constitutional Court Decision No. 17 of 18 June 1998 on Constitutional Case No. 15/1998, for activities that are not mandatory because they fall outside the minimum educational requirements of school education, the charging of fees does not contradict the principle of free primary and secondary education in state and municipal schools (Article 53, paragraph 3 of the Constitution) or the principle of compulsory schooling up to the age of 16 (Article 53, paragraph 2 of the Constitution).
Outside the educational process, institutions within the system of pre-school and school education carry out a range of activities and measures which, although not part of the educational process itself, support or ensure it. Some of these activities are also financed from the state budget, as the legislator has determined that they are essential to ensuring access to quality education. Alongside the activities and measures provided for by the Pre-school and School Education Act and financed by the state budget, the system also includes various other activities which are not mandatory or necessary and are generally carried out on a voluntary basis. For activities outside those financed by the State, parents are required to pay fees.
The development of national qualifications frameworks under national legislation is aimed at establishing consistency between national qualifications frameworks and the European Qualifications Framework. The National Qualifications Framework of the Republic of Bulgaria covers the entire education system and all qualifications within it; therefore, the requirement laid down in Article 23, paragraph 1 of the PSEA, concerning the drafting of state educational standards for the acquisition of professional qualifications and for general and specialised (profiled) education, does not contravene the Constitution.
The possibility provided for private kindergartens and schools to receive state subsidies for the provision of compulsory pre-school and school education for children and pupils, as well as for school education for pupils, is also not in conflict with the Constitution. The law does not create privileges or unequal treatment between educational institutions on the basis of ownership. On the contrary, by providing state subsidies according to uniform cost standards and for the same educational activities for children and pupils, equal treatment is ensured for all schools - state, municipal and private.
Furthermore, educational services provided by private educational institutions included, in accordance with the relevant procedure, in the system of state funding constitute a public service that is budget-subsidised and does not represent an economic activity carried out for remuneration within the meaning of the competition rules, and therefore falls outside the scope of the prohibition under Article 107, paragraph 1 of the Treaty on the Functioning of the European Union (TFEU). In this sense, budget subsidies are not granted to legal entities that qualify as “undertakings” within the meaning of State aid rules, as the financing is provided exclusively for non-economic activities of general interest which fall outside the scope of the competition law provisions of the TFEU.
Grounds for the Ruling and Disposition
Pursuant to Article 149, paragraph 1, items 2 and 4 of the Constitution (the competence to rule on requests for a declaration of unconstitutionality of laws and for determining the conformity of laws with international treaties to which Bulgaria is a party), the Constitutional Court rejects the request seeking a declaration of unconstitutionality and a finding of non-conformity with international treaties to which Bulgaria is a party.